By Tom Strode
WASHINGTON (BP) – The U.S. Supreme Court questioned multiple lawyers for nearly three hours Monday regarding whether Texas’ ban on heartbeat abortions may continue to be enforced.
The justices heard oral arguments in lawsuits brought by abortion providers and the Biden administration that seek to block enforcement of the Texas Heartbeat Act (S.B. 8), which prohibits the abortion of an unborn child whose heartbeat can be detected. By definition, the law, which has been in effect for all but two days since Sept. 1, bans abortions as early as five to six weeks into pregnancy.
At this stage, the high court is not considering the constitutionality of the Texas law but whether it may remain in effect while the case is being adjudicated and whether the U.S. government may challenge it in federal court.
The Supreme Court, however, has agreed to rule in its current term on another state law that prohibits early abortions and provides the justices with the opportunity to reconsider and even reverse the right to abortion established in the court’s 1973 Roe v. Wade opinion. The justices will hear oral arguments Dec. 1 in Dobbs v. Jackson Women’s Health regarding the constitutionality of a Mississippi law that prohibits the abortion of an unborn child whose gestational age is more than 15 weeks.
The Southern Baptist Ethics & Religious Liberty Commission (ERLC), other pro-life organizations and the state of Mississippi have filed briefs in support of the 15-week ban that urged the high court to reverse the Roe ruling and the 1992 Planned Parenthood v. Casey decision, which affirmed Roe but permitted some state regulation of the procedure.
Chelsea Sobolik, the ERLC’s director of public policy, said Monday in written comments she is “grateful for any and all efforts to protect the lives of vulnerable little ones in the womb. As the highest court in our nation hears this case and the Dobbs case next month, the church should continue caring and advocating for vulnerable mothers and their preborn children.”
The Texas law has been the target of criticism not only because of its early prohibition on abortion but because of its means of enforcement. In an unusual move, the law prohibits a government official from enforcing the ban but authorizes any private citizen to bring a civil lawsuit against someone who performs a prohibited abortion or assists in the performance of such a procedure. Under the law, a court is to award at least $10,000 to a successful plaintiff.
During oral arguments in Whole Woman’s Health v. Jackson, Marc Hearron – senior counsel with the Center for Reproductive Rights, a leading abortion-rights organization – told the justices the Texas legislature “not only deliberately prohibited the exercise of a constitutional right recognized by this court, it did everything it could to evade effective judicial protection of that right in federal or state court” in approving the ban.
“S.B. 8 is an abortion prohibition, but the issues before this court are far more sweeping,” Hearron said. “To allow Texas’ scheme to stand would provide a roadmap for other states to abrogate any decision of this court with which they disagree. At issue here is nothing less than the supremacy of federal law.”
Judd Stone, Texas’ solicitor general, told the high court none of those sued by the abortion providers are “appropriate defendants.” Among those sued were a state judge and a county court clerk.
The abortion providers bringing suit cannot gain an injunction “because federal courts don’t issue injunctions against laws … but against officials enforcing laws. No Texas executive official enforces S.B. 8 either, and so no Texas executive official may be enjoined,” he said.
The harms claimed by the abortion providers “are not fairly traceable … to any allegedly unlawful behavior by state court judges or clerks,” Stone told the justices.
In arguments in United States v. Texas, Elizabeth Prelogar, the newly confirmed U.S. solicitor general, said the state intended for the ban “to thwart the supremacy of federal law in open defiance of our constitutional structure.”
“The United States has a manifest sovereign interest in suing to redress this violation,” she told the justices. “ an attack on the authority of this court to say what the law is and to have that judgment respected across the 50 states.”
Stone told the high court the federal government “is not a proper plaintiff” and “cannot claim a sovereign interest” in such a suit.
“The United States cannot seriously assert that the Constitution requires pre-enforcement federal judicial review,” he said. “It opposes that result in virtually every other case.”
At least one pro-life legal specialist – Ed Whelan, distinguished senior fellow at the Ethics and Public Policy Center – expressed concern after the oral arguments. In a post for National Review Online’s Bench Memos, Whelan said his “immediate take” after hearing the arguments “is that we appear to have the extraordinary prospect that six justices will rule that the abortion providers in Whole Woman’s Health v. Jackson are somehow entitled to an injunction that would prevent state court clerks from accepting and filing complaints alleging violation” of the law.
The Supreme Court had previously ruled on an effort to block enforcement of the Texas law before the oral arguments. The justices issued a Sept. 1 order that allowed the ban to be enforced. In a 5-4 split, the majority said its action “is not based on any conclusion about the constitutionality of Texas’s law” and does not restrict “other procedurally proper challenges” to the measure.
A federal court halted enforcement of the law Oct. 6, but the Fifth Circuit Court of Appeals in New Orleans stayed that injunction two days later. At least six clinics in Texas resumed providing abortions banned by the law or were preparing to provide them after federal judge Robert Pitman’s order, according to the Associated Press. Clinics that performed abortions while the injunction was in effect, however, apparently could be held liable for violating the law.
On Oct. 22, the Supreme Court scheduled oral arguments in the challenges to the Texas law while permitting the ban to remain in effect.
The Texas law is the only ban on abortion after a fetal heartbeat to be in effect in the United States. About 85 to 90 percent of abortions in Texas are performed on women who are at or beyond that point in pregnancy. At least 10 other states have enacted fetal heartbeat bans, but courts have blocked the others from going into effect.
The Texas ban, which was enacted in May, includes an exception for a medical emergency in a mother but none for a pregnancy that is the result of rape or incest.